Hard National Security Choices

Wait—that’s not quite true. First, we have a sidebar about the Convening Authority, Bruce MacDonald. His testimony is set for tomorrow, on AE08 and AE31. The defense’s motion for discovery, AE47, implicates both of those motions, so Judge Pohl will hold off on that submission until after the court hears from MacDonald. But Ruiz sees things differently: AE47 will inform the court’s resolution of A008 and A031, and therefore the lawyer wants the discovery motion out of the way—now—so that the defense isn’t forced to question MacDonald without access to as-yet undiscovered material. In that case, Judge Pohl says, we’ll just recall the witness. Thus, an impasse: for its part, the defense believes it needs additional documentary discovery (and, consequently, extra time) in order to prepare for MacDonald’s testimony; but the court doesn’t want to rule on discovery until after MacDonald testifies.

The defense emphasizes the unfairness in play. The lawyers only just received unclassified discovery recently, and the submission is over 1,000 pages. Now we have to slog through all of that before tomorrow, in order to be ready for MacDonald’s testimony. Ruiz also notes an inconsistency in the prosecution’s practices: the government delayed its production initially, citing the defense’s refusal to sign a memorandum of understanding (“MOU”) related to the protective order as the reason. But then prosecutors provided the documents to the defense anyway, notwithstanding the MOU’s status. Judge Pohl, for his part, is curious about that subject. Why haven’t y’all signed on to the protective order? The failure to do so deprives you of access to classified discovery material.

The answer: because the defense still has ongoing litigation over the protective order’s language. The court thinks that dispute needs to be resolved, but in any case says that the defense must live with its choice to delay discovery. And wait a second: Ruiz and company had enough information to file their motion, but not enough to litigate it? What was the basis for the filing? Nevin has the answer. We file motions when we have met a threshold of a good-faith effort, your honor—but that doesn’t mean we stop investigating. Instead, I file my motions just as soon as I have enough facts to support them, while at the same time striving to learn as much as possible. The defense lawyer also notes the case’s uniqueness, and the procedural problems of commissions practice. Judge Pohl’s brow furrows. Cdr. Ruiz, were you ready to litigate the motion when you filed it on 5 May? Yes, Ruiz says—based on the discovery available at the time. He wasn’t in the best position to argue it, however, and instead made a tactical decision to push on. Judge Pohl and Ruiz trade a few quibbles more—about classified discovery, and sluggish response times—and an irritated court decides to hear the other side’s view.

Addressing prosecutor Jeffrey Groharing, Judge Pohl asks about Ruiz’s discovery motions from April 2012. Why did it take so long for the government to respond? This had to do with referral materials, Groharing explains, along with legal adviser’s advice to the Convening Authority. Some of these items were classified—and, by way of reminder, we’re still waiting for the defense to sign the MOU. Judge Pohl says he only cares about unclassified stuff, as many classified documents apparently had been modified, so as to allow for production to the defense. Thus he queries Groharing once more. So there was a delay, with the expectation that the MOU would be signed soon—but that didn’t happen? Yes. The prosecutor adds that the defense hasn’t attacked the legal adviser’s counsel as defective; and that the defense elected not to talk to MacDonald back in April, contrary to the prosecution’s suggestion. Any lack of preparation is their fault, not ours, Groharing seems to argue.

Ruiz rises again with a separate discovery complaint, this one about AE31—the defense’s motion to dismiss for unlawful influence. In connection with that, Ruiz interviewed the former Chief Prosecutor, who stonewalled every question, save those regarding his name and his rank. Judge Pohl is interested here about the Convening Authority, not Mark Martins’ predecessor. In any event, So what AE31 will MacDonald’s testimony address? Perhaps hesitatingly, Ruiz says he desires to know how the administration’s public statements might have affected MacDonald’s selection as Convening Authority and decisions while in office. Then wouldn’t it be useful, the court says, to hear from MacDonald tomorrow? Once we’re done with the discovery motion, the defense can recall him.

Judge Pohl thought he was done with all of this. He was wrong. Now Groharing opts for a second play on his earlier string. I was there, Groharing says, when Ruiz decided not to interview MacDonald. That seems a moot point, as Judge Pohl now has decided that, in fact, the Convening Authority will testify on Thursday.

About the Author

About the Author

Raffaela Wakeman is an evening student at Georgetown University Law Center, a former researcher at the Brookings Institution, and a legal intern with the Department of Treasury’s Office of General Counsel. The views expressed in this post are her own, and do not represent the views of the U.S. Government or the Department of Treasury. She was a full-time contributor to Lawfare from 2011 to 2014, most recently serving as an Associate Editor.

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